The letter adds that "This investigation will also address a growing number
of allegations received by the Committee relating to management practices that
may adversely affect the agency’s operation."

The letter states that HCC "investigators will interview FCC employees and
other witnesses in preparation for an oversight hearing this year". It does not
set a hearing date.

The letter then proceeds to make a series of blunt and unusual statements.
First, the letter requests that Martin "immediately notify all FCC employees
of their right to communicate with Congress and that it is against the law to
deny or interfere with their rights to furnish information to Congress".
(Emphasis in original.)

Second, the letter requests that Martin inform FCC officials that "it is a
violation of Federal law to retaliate against whistleblowers".

Third, it requests that Martin "immediately preserve all electronic records,
including work e-mail and personal e-mail communications relating to official
work of the Commission, and calendars and schedules of all employees".

Finally, it requests that Martin provide "unedited and unredacted copies of
this letter to all employees and contractors of the FCC".

See also, December 3, 2007,
letter [3 pages in PDF] from Rep. Dingell to Martin, and story titled
"Martin Responds to Dingell's Questions About Lack of Transparency at the FCC"
in TLJ Daily E-Mail Alert No. 1,686, December 11, 2007.

1/4. The U.S. Court of Appeals (5thCir) issued
its opinion
[5 pages in PDF] in Virgin Records v. Cliff Thompson, affirming the judgment of
the District Court, which denied attorneys fees to the prevailing defendant in an improvidently
filed peer to peer music copyright infringement action.

Background. The plaintiffs, Virgin Records, Sony BMG Music Entertainment, Arista
Records, and UMG Recordings, are record companies. The copyrights of these and
other record companies are infringed by users of peer to peer systems who
download or upload copyrighted songs without authorization.

The Office of the U.S. Trade Representative
(OUSTR) wrote in its
report [52 pages in PDF] titled "2007 Special 301 Report" that "The
increased availability of broadband Internet connections around the world has made the
Internet an extremely efficient vehicle for disseminating pirated products." It added
that the "copyright industries report growing problems with piracy not only on the
Internet, but also using cellular telephones, palm devices, flash drives, and other mobile
technologies."

Stephen Siwek estimated in
an August 21, 2007,
report [28 pages in PDF] titled "The True Cost of Sound Recording Piracy to the U.S.
Economy" that total annual worldwide losses to all types of piracy by U.S. record and
related companies is $4.068 Billion. Siwek further wrote that "As a consequence of global
and U.S.-based piracy of sound recordings, the U.S. economy loses $12.5 billion in total
output annually."

One anti-piracy strategy of U.S. record companies is to sue persons who upload copyrighted
songs via peer to peer networks. The present action is one such suit. The
Recording Industry Association of America
(RIAA) stated that "Since the onset of our lawsuits in 2003, we have brought
some 28,000 legal actions against individuals."

In the present case, the record companies filed a complaint in
U.S. District Court (WDTex) against Cliff Thompson.
The record companies then moved to dismiss. The District Court dismissed the complaint. Thus,
Cliff Thompson is the prevailing party. Thompson moved for an award of attorneys fees. The
District Court denied Thompson's motion.

The opinion states that the record companies moved to dismiss following Cliff Thompson's
assertion that any infringement would have been done by his adult daughter.

The record companies filed a second complaint against Brigette Thompson, and
obtained a default judgment against her, although the opinion does not relate this.

The plaintiff record companies were on notice at the time of filing the complaint against
Cliff Thompson that they were suing the wrong person. They sued a "Cliff Thompson",
a name usually used by a man. In contrast, their information was that the infringer went by
the online name of "gigette", which is neither a variation of Cliff or Thompson,
nor a name usually used by a man. The "ette" ending to a name connotes feminine
and/or diminutive attributes.

Thompson brought the present appeal of the District Court's denial of
attorney's fees. The underlying dismissal of the complaint against him is not at issue.

Is This Case Significant? This case involves no substantive issues of
copyright law. It only goes to attorneys fees. Moreover, the District Court
proceeding was brief, and the defendant's attorneys fees would likely have been
modest. (The opinion does not disclose the amount of the request.) If this case
does have significance to other litigants, and litigants in non-copyright cases,
the reasons might be as follows.

Online transactions are inherently conducted with varying degrees of anonymity. The identity
of the ownership of a computer, a cell phone, an internet account, or a wireless account is
not necessarily the same thing as the identity of the user of that device or account for any
particular transaction. Devices and accounts are used by persons other than their owners,
sometimes without the owner's knowledge. Identities are stolen, and used to purchase computers
and to open accounts. Computers and accounts are surreptitiously taken over by
hackers, spammers, botnet herders, and others.

Criminal and/or civil liability attaches to various actions involving the use
of devices and accounts. These include not only peer to peer music
infringement, but also violations of the Computer Fraud and Abuse Act (CFAA),
the CAN-SPAM Act, other federal statutes, as well as contract and tort claims.

(The CAN-SPAM Act,
Public Law No. 108-187, creates a private right of action for ISPs, and provides that
"the court may" award attorneys fees "against any party". The CFAA, at
18 U.S.C. § 1030(g), creates a general private right of action.)

Different statutes and principles regarding the award of attorneys fees apply
in different types of cases. Nevertheless, litigants and courts might cite the
present opinion, or similar opinions, as authority for the proposition that when
complaints are filed against the wrong person, based upon their ownership of a
device or internet account used in actionable conduct, these complaints can be
dismissed without an award of attorneys fees to the prevailing defendant.

Moreover, since copyright litigation is often inherently factual dense,
procedurally complex, and within the exclusive jurisdiction of the federal
courts, actual attorneys fees can easily run into the hundreds of thousands of
dollars. Actual attorneys fees often exceed actual damages.
Hence, the issue of whether or not actual attorneys fees are awarded takes on
greater importance in copyright litigation than in many other types of litigation.

Furthermore, peer to peer music infringement cases are brought almost exclusively
against individuals, many of whom are of modest means. Other incorrectly named
defendants in cases involving use of devices or accounts are also likely to be
ordinary individuals. Some will not be able to retain counsel, and will
therefore settle and pay damages for claims for which they are not liable, or
allow a default judgment to be taken against them. Denying the recovery of
attorneys fees to incorrectly named defendants will increase the likelihood that
they will not be able to retain counsel, and thereby increase the number of
persons whose finances and reputations are harmed by judicial process in the
absence of any liability or wrongful conduct. The law sometimes abhors such outcomes.

Statute and Precedent. The Copyright Act, at
17 U.S.C. § 505, provides that "In any civil action under this title, the
court in its discretion may allow the recovery of full costs by or against any
party other than the United States or an officer thereof. Except as otherwise
provided by this title, the court may also award a reasonable attorney's fee to
the prevailing party as part of the costs."

Notably, the award of attorneys fees is not mandatory. The statute uses the
word "may" rather than "shall".

This, combined with various courts' application of this section, has resulted in
uncertainty regarding whether or not attorneys fees will be awarded.

The leading Supreme Court precedent is
Fogerty v. Fantasy, Inc.,
510 U.S. 517 (1994). The Supreme Court held that under Section 505, "Prevailing
plaintiffs and prevailing defendants are to be treated alike, but attorney's fees are to be
awarded to prevailing parties only as a matter of the court's discretion."

One of the leading 5th Circuit cases is Hogan Sys., Inc. v. Cybresource Int’l, Inc.,
158 F.3d 319, which held that "the award of attorneys' fees in copyright cases is the
rule rather than the exception, and should be awarded routinely".

Another pertinent 5th Circuit case is
Ergonome v. Compaq
Computer (2004). In that case Compaq copied, for commercial purposes, from a copyrighted
work, without authorization. The plaintiffs filed the complaint against the correct defendant.
The defendant had engaged in unauthorized copying. However, the defendants escaped liability
on a fair use defense. The District Court awarded Compaq $2,765,026.90 attorneys fees. The
Court of Appeals affirmed. The award drove the plaintiffs into bankruptcy.

Court of Appeals. In the present case the Court of Appeals affirmed the judgment of
the District Court.

It departed from its strict preference for awarding attorneys fees evidenced
by its opinions in Hogan and Ergonome. It
wrote that the "recovery of attorney’s fees is not automatic"

The Court of Appeals analysis consists largely of quoting with approval the opinion of the
District Court. First, it wrote that the District Court "determined that Plaintiffs’
lawsuit was not frivolous or objectively unreasonable, citing several reasons for this
conclusion. The court found that ``Plaintiffs discovered substantial copyright infringement of
their songs by a file-sharing program attached to an internet [sic] account registered to
Thompson.´´ The court also found that the Plaintiffs attempted to contact Thompson to resolve
this matter for six months prior to filing this lawsuit." (Internal quotations and brackets
in Court of Appeals opinionl.)

Second, it wrote that the District Court "concluded that Plaintiffs’ ``motivation in
bringing the suit was proper.´´ The court found no indication that Plaintiffs
``prosecuted this suit with malevolent intent.´´ Instead, the court determined
that Plaintiffs acted properly to protect their copyrights after they discovered
copyright infringement of their songs. The court also found that Plaintiffs
``immediately moved to dismiss´´ their suit against Thompson after they identified
the adult daughter that Thompson acknowledged might be responsible for the
copyright infringement."

Third, it wrote that the District Court "concluded that awarding Thompson attorney’s
fees would not advance considerations of compensation and deterrence. These
Plaintiffs should not be deterred from bringing future suits to protect their
copyrights because they brought an objectively reasonable suit. Thompson,
however, ``delayed the prompt resolution´´ of this litigation by failing to
respond to Plaintiffs’ pre-suit communications and to disclose the identify of
the true copyright infringer."

The Court of Appeals relied upon Section 505, Fogerty, and Hogan.
It did not site Ergonome. It should also be noted that the Court of
Appeals did not site any other rules that might give rise to a duty to negotiate
or communicate in copyright actions prior to the filing of the complaint. For
example, the opinion does not discuss any applicable code of professional
responsibility. The opinion does not state that either Thompson or whoever
wrote to him are licensed by any state bar association. Nor does the opinion
discuss any applicable provisions of the local rules of any district court.

The denial of attorneys fess by the District Court and Court of Appeals in
this case resembles discovery sanctions. Thompson was denied attorneys fees for
failure to respond to discovery requests. However, pre-litigation letters are
not discovery requests within the meaning of the FRCP.

Moreover, there are numerous legal procedures for conducting discovery available to
record companies in various situations. They could have filed a copyright infringement
action against a John Doe defendant, alleging infringement, and that the
identity of the infringer was unknown, and then proceeded with discovery,
pursuant to the FRCP, from witnesses. They could have conducted an oral
deposition of Cliff Thompson, and asked him his knowledge of the identity of the
infringer. They could have proceeded in this John Doe action to obtain records from
service providers pursuant to a Rule 45 subpoena. Under some circumstances,
record companies can avail themselves of the discovery procedure allowed by 17
U.S.C. § 512(h).

Finally, perhaps it should be noted that the Court of Appeals issued a per curiam opinion
of a three judge panel comprised of Edith
Jones, Jacques Wiener and Edith Clement. Judge Jones also wrote the opinion of the
Court of Appeals in Ergonome. It may be difficult to reconcile her two opinions.

This case is Virgin Records, et al. v. Cliff Thompson, U.S. Court of Appeals
for the 5th Circuit, App. Ct. No. 07-50067, an appeal from the U.S. District
Court for the Western District of Texas, D.C. No. 5:06-CV-592.

It also contains a provision that allows for increased participation in
District Court administration by senior status District Court Judges who perform
at least one half of the work of active status Judges.

The bill also amends 28 U.S.C. § 44(a) to increase the number of Judges of the
U.S. Court of Appeals (9thCir) from
28 to 29, effective January 21, 2009. That is, it will be left to the next
President to appoint someone for this new judgeship.

The bill also decreases the number of Judges of the
U.S. Court of Appeals (DCCir) from 12 to 11.
The bill does not specify an effective date for this provision.

President Bush first nominated Peter
Keisler (at right) to be a Judge of the DC Circuit in 2006. He renominated him at the beginning
of the current Congress.

A spokesman for the Senate Judiciary
Committee (SJC) stated to TLJ that the Keisler nomination is unaffected by
HR 660 because he has been nominated for the 11th seat.

There are currently ten active status Judges, and three senior status Judges,
on the DC Circuit. See,
list.

12:00 NOON - 1:30 PM. The
Alliance for Public Technology (APT) will host a program
titled "Bringing Educational Opportunities to Rural & Urban America".
The speakers will include Robert Atkinson (head of the
Information Technology and Innovation Foundation). This is part of a series of events
on Capitol Hill at which the APT gives broadband related awards. A box lunch will be served.
RSVP to apt at apt dot org or 202-263-2970. Location: Room HC-6, Capitol Building.

Deadline to submit initial comments to the
Federal Communications Commission (FCC) in
response to its Notice of Proposed Rulemaking (NPRM) in which it proposes to
extend the current five year registration period for the Do Not Call
Registry. This NPRM is FCC 07-203 in CG Docket No. 02-278. See,
notice in the Federal Register, December 14, 2007, Vol. 72, No. 240, at Pages
71099-71102. See also, story titled "FCC Adopts NPRM Regarding Extending Do Not Call
Registrations" in TLJ Daily E-Mail Alert No. 1,680, November 30, 2007.

Tuesday, January 15

The House is scheduled to return from recess. Votes will be postponed at
least until 6:30 PM. See, Rep. Hoyer's
2008
calendar [4.25 MB PDF].

3:30 - 5:00 PM. The National Association of
Broadcasters (NAB) will host a closed webcast seminar titled "What
Every Station Should Know about Political Advertising". The speakers will
include Bobby Baker (head of the FCC's Office of Political Programming). See,
notice. This event is closed to all but NAB members.

Wednesday, January 16

The House is scheduled to be in session. See, Rep. Hoyer's
2008
calendar [4.25 MB PDF].

2:30 - 4:30 PM. The Department of State's (DOS) International
Telecommunication Advisory Committee (ITAC) will hold a public meeting
to prepare advice for the U.S. on positions for the February 2008 meeting of
the working groups of the International Telecommunication Union Council. See,
notice in the Federal Register, December 31, 2007, Vol. 72, No. 249, at
Page 74402. Location: undislcosed.

3:30 PM. Panel titled "International Content Control:
Are the Days of the Borderless Internet Over?" The speakers will be
Sean Garrett (463 Communications) and David Gross (Department of State).

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